Wilmarth v. Johnson

Wisconsin Supreme Court
Wilmarth v. Johnson, 124 Wis. 320 (Wis. 1905)
102 N.W. 562; 1905 Wisc. LEXIS 69
Kerwiw

Wilmarth v. Johnson

Opinion of the Court

KeRWIw, J.

The only question litigated on the trial was the amount of plaintiffs’ mortgage debt. The plaintiff L. G. Wilmarth had charge of the collection of rents under the Brown and Keneally leases, which rents were to be applied in payment of insurance and taxes on the mortgaged premises and the balance upon the plaintiffs’ mortgage debt. The court below found that the plaintiff L. C. Wilmarth collected $7,030 and no more, and paid out at the request of defend*323ant Johnson $3,186.63 on his debts, and that the balance, $3,843.37, was, by agreement of plaintiffs and defendant Johnson, applied on the indebtedness to the plaintiffs mentioned in the complaint. It is contended, however, on the part of defendant J ohnson that the plaintiff L. 0. Wilmarth should have collected $2,625 more rent on the Brown lease, and that, because he failed to do so but consented to a reduction of the rent, the plaintiffs should be charged with such reduction. It is also claimed that $280 paid on insurance and $479.16 on repairs should be charged to the plaintiffs because unauthorized by defendant Johnson.

The only question, therefore, to be considered is whether the $2,625, uncollected amount of rent on Brown lease, $280 paid on insurance, and $479.16 on repairs should be charged to plaintiffs. It appears from the evidence that the lease of the mortgaged property was made to. M. W. Brown on the 22d day of May, 1895, for a period of five years, at the annual rental of $1,500; that according to the terms thereof payments were to be made to Wilmarth and applied on taxes, insurance, and mortgage indebtedness of plaintiffs.. About one year after the execution of the lease Brown failed to •comply with its terms, and the rent was reduced from $125 per month to $100, and afterwards to $75, and later to $60. The plaintiff Wilmarth testified that this reduction of rent was made with the consent of J ohnson, and the facts and circumstances in the case seem to corroborate this theory. The •evidence shows that the times were hard. Brown failed to make his payments promptly, and was probably insolvent. It was considered for the interest of all parties that the rent should be reduced, and there is ample evidence that it was done with the consent of Johnson. There is some evidence •to the effect that Johnson proposed taking the premises himself, when the question of reduction of rent came up, but this proposition was never carried out, and Brown was suffered (to remain in possession until the property was afterwards *324leased to Keneally. It is undisputed tbat tbis $2,625, amount of uncollected rent, which Johnson claims should be charged to the plaintiffs, was never collected or applied on the indebtedness. The answer of defendant Johnson alleges that plaintiff Wilmarth agreed to collect all of this rent, but this allegation is unsupported by the evidence. It is very clear that the $2,625, uncollected rent, upon any theory of the testimony, is not chargeable to the plaintiffs.

Concerning' the other items — $280 on insurance and $419.16 on repairs — we think the evidence is ample that this-insurance and the bills for repairs were paid, by authority and with the consent of defendant Johnson, out of the rent moneys collected. The lease provided that insurance and taxes should be paid out of the rents, and the mortgage also pi'ovided that the property should be kept insured at the expense of the mortgagors. It appears that in the fall of 1895, when the plaintiff Wilmarth took charge of the mortgaged property, there was one year’s back insurance, amounting to-about $280, and several years’ back taxes. It seems that the-first rent was used by Wilmarth to pay the back insurance, about $280, and the back taxes. This $280 insurance, as we-understand it, is the insurance which the defendant Johnson claims plaintiffs had no authority to pay; but it was Johnson’s debt and was paid for his benefit. Plaintiff Wilmarth testifies that all disbursements were made at the request of defendant Johnson and were consented to by him, and that statements were furnished showing the items of insurance, taxes, and repairs. It is clear from the evidence that all insurance and taxes, as well as money expended for repairs,, were for the benefit of the propexl-y in which defendant Johnson had an equity of redemption. These expenses were incurred and paid for the purpose of preserving and keeping up-the property and securing an income therefrom, and the claim of counsel that they should be charged to plaintiffs is. not supported by the evidence.

*325Tlie findings of the court below established the amount of rents collected, the amount of moneys paid out for insurance, taxes, and repairs, and the amount which by agreement of plaintiffs and defendant Johnson was applied on the mortgage indebtedness. If these findings stand, the judgment of the court below must be affirmed. We have carefully examined the evidence and are satisfied that the findings are sustained by the evidence, or at least that there is no such preponderance of the evidence against such findings as would justify this court in disturbing them.

By the Gourt. — The judgment of the court below is affirmed.

Reference

Full Case Name
Wilmarth and another v. Johnson, imp.
Status
Published